S.P. Mangla vs Export Inspection Council Of ...
2013 Latest Caselaw 1060 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on   : 26.02.2013
                                 Judgment pronounced on : 04.03.2013


+      LPA No.568/2010

       S.P. MANGLA                                    ..... Appellant
                            Through :   Mr. G.D. Gupta, Sr.Adv. with Mr.
                                        S.K. Gupta, Advs.
                   versus

       EXPORT INSPECTION COUNCIL
       OF INDIA & ORS.                                   .... Respondent
                            Through :   Mr. L.R. Khatana, Adv.
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN


V.K. JAIN, J.

1. 1. The appellant before us, Shri S.P. Mangla, was working as

Deputy Director in Export Inspection Agency, Delhi. On receipt of

intimation for inspection of a consignment of 100 fans, from M/s Jeevan

Engineering Works, Dlehi, an inspection of the said consignment was

carried out by Shri S.K. Caroli, Assistant Director and the consignment

was declared export worthy on 4.7.1983. The appellant, however, rejected

the said consignment on 5.7.1983 on the ground that it did not meet the

requirement of IS.374-1979 in respect of power input and air delivery.

The rejection letter was received by M/s Jeevan Engineering Works only

on 24.7.1983, though the Office Circular dated 21.10.1983 required such

certificate to be dispatched within 48 hours of inspection. Since the

respondent no.1 was not satisfied with the explanation furnished by the

appellant for rejecting the said consignment and the delay in dispatch of

the rejection letter, a charge-sheet containing the following charges was

served upon the appellant:

"Statement of Articles of Charges Framged Against Shri S.P. Mangla, Deputy Director, Export Inspection Agency, Delhi.

ARTICLE-I

Shri S.P. Mangla, while functioning as Deputy Director, Export Inspection Agency - Delhi during the period June-July, 1983 decided to reject a consignment of 100 Nos. 56th Asha Brand Electric Ceiling Fans offered for inspection by M/s Jeewan Engineering Works, Shahdra vide their intimation dated 1.7.1983, while the same was declared as export worthy by Shri S.K. Caroli, Assistant Director, Export Inspection Agency-Delhi after conducting inspection

on 2.7.1983 and 4.7.1983. While rejecting the said consignment, Shri Mangla totally ignored the instructions issued by Export Inspection Council, Calcutta to all Export Inspection Agencies vide Circular No.CIN/EF/77 dated 5.10.1977 which provides acceptance of lower service value of the fans prescribed by the foreign buyer.

Shri Mangla by his above act has failed to maintain devotion to his duty thereby violated Rule 3(1)(ii) of the Central Civil Services (Conduct) Rules, 1964 as applicable to the employees of the Export Inspection Agencies.

ARTICLE-II

Shri S.P. Mangla while functioning as Deputy Director in Export Inspection Agency-Delhi during the period Jul-July, 1983 deleted to communicate in writing his decision to reject a consignment of 100 nos. 56" Asha brand electric fans to M/s. Jeewan Engineering Wroks, Shahdra, inasmuch as he did not observe the time limit and procedure prescribed for the purpose vide Export Inspection Council, Delhi letter No. EIF/D(QC)/T-32/82 dated 21.10.1982 and specially when Shri S.K. Caroli, Assistant Director,

Export Inspection Agency-Delhi had informed M/s Jeewan Engineering Works on 4.7.1983 after inspection of the said consignment that the said consignment was export worthy.

Shri Mangla by his above act has failed to maintain devotion to his duty and acted in a manner unbecoming of an Agency employee thereby violated Rule 3(1)(ii) and Rule (1) (iii) of the Central Civil Services (Conduct) Rules, 1904, as applicable to the employee of the Export Inspection Agencies.

ARTICLE-III

Dr. Y.R. Singh, Executive Secretary, All India Small Scale Cables and Conductors Manufactures Association, New Delhi vide his letter dated 30.7.1983 has alleged that the consignment of 100 Nos of electric fans offered by M/s Jeewan Engineering Works, Shadhra on 2.7.1983 and 4.7.1983 for inspection was rejected as M/s Jeewan Engineering Works, Shahdra did not pay the money to the inspector and Shri S.P. Mangla, Deputy Director. Shri N.K. Jain, Proprietor, M/s Jeewan Engineering Works, Shahdra in his statement dated 11.8.1983 has stated that his consignment of 100 Nos. Electric fans were rejected as S/Shri S.K. Caroli, and S.P. Mangla did not get the money. Shri Mangla by his above act has failed

to maintain absolute integrity and acted in a manner unbecoming of an Agency employees thereby violated rule 3(1)(i) and Rule 3(1) (iii) of the Central Civil Services (Conduct) Rules, 1964 as applicable to the employees of the Export Inspection Agencies."

2. Since the written statement of defence submitted by the appellant

to the aforesaid charge-sheet was not found to be acceptable, an inquiry

was instituted against him under Rule 11 of Export Inspection Agency

Employees (Classification), Control and Appeal, Rules, 1978. The

charges having been held to be proved, penalty of removal from service

was imposed upon the appellant on 20.6.1986. Being aggrieved from the

order passed by the Disciplinary Authority, the appellant preferred an

appeal to the prescribed Appellate Authority. The Appellate Authority

confirmed the findings on Charges No.I and II but held that Charge No.III

was not proved beyond doubt. However, since the Appellate Authority

was of the view that the Charges No.I and II were serious enough to

warrant removal of the appellant from service, the penalty imposed upon

him by the Disciplinary Authority was maintained. Being aggrieved from

the order passed by the Disciplinary Authority and the Appellate

Authority, the appellant filed a writ petition being W.P.(C)

No.22996/1991. The said petition having been dismissed vide the

impugned order dated 6.10.2009, the appellant is before us by way of this

appeal.

3. After making submissions for sometime on the merits of the

charges no.I and II, held to be proved against the appellant, the learned

senior counsel for the appellant, on instructions from the appellant who

was present in the Court, stated that the appellant did not seek to

challenge the findings in respect of charges no.I and II and, therefore, he

was confining his challenge to the penalty imposed upon the appellant

which, according to the learned senior counsel for the appellant was

wholly disproportionate to the charges established against the appellant

and would in fact shock the conscious of the Court.

4. On perusal of the charges, we are satisfied that charge no.III

alleging that the decision of the appellant to reject the consignment of

M/s Jeewan Engineering Works was a clear case of corruption since the

party did not pay the money to him was the most serious charge against

the appellant and since the Appellate Authority took the view that the said

charge was not established, it would be difficult to uphold the punishment

of removal from service only in respect of charges no.1 and 2, which

pertain primarily to breach of the instructions issued by the Council in the

matter of inspection of such a consignment and the delay in dispatch of

the rejection to the consigner.

5. In nutshell, the first charge against the appellant was that though

the Council had vide Circular No.CEN/E-I/77 dated 5.10.1977 decided to

allow export of consignment of electric fans having a lower service value

as compared to the Indian standards provided the same was acceptable to

the overseas buyer and documentary proof of the buyers' acceptance of

the lower service value was furnished whereas the appellant had rejected

the consignment without first checking up with the consigner, as to

whether the lower service value was acceptable to the foreign buyer or

not. This was not the case of the appellant in the charge-sheet that the

aforesaid act of the appellant amounted to any misconduct. The charge

was that the appellant by the above act had failed to maintain devotion to

his duty, thereby violating Rule 3(1)(ii) of the CCS Conduct Rules, 1964

as applicable to the employees of the Council. It would, therefore, be

difficult to dispute that the aforesaid charge could not have warranted

penalty of removal of service.

6. The second charge against the appellant in nutshell was that the

certificate of rejection of the consignment should have been kept ready

within 48 hours after completion of inspection for handing over to the

consigner or for dispatch to him. The exporter was required to record in

the notice of intimation as to whether he would collect the certificate of

inspection by himself from the office or the same may be dispatched to

him by the Agency. In case the certificate was to be dispatched, such

dispatch should have taken place immediately on expiry of 48 hours from

the inspection. The officer who was responsible to issue certificate of

inspection was also required to ensure implementation of the system.

Thus, the charge proved against the appellant was that he did not ensure

dispatch of the certificate to the exporter/ consigner within 48 hours of

the inspection in terms of the instructions issued by the Council. The

Statement of Imputation of Misconduct accompanying the charge-sheet

shows that the rejection letter dated 5.7.1983 indicating the reason of

rejection was prepared and signed by the appellant on 5.7.1983 but it was

actually dispatched on 21.7.1983 and received by the exporter/ consigner

on 24.7.1983. This delay took place despite a phonogram dated 8.7.1983

from the consignor/ exporter asking for the inspection certificate. Though

it is alleged in the Statement of Imputation of Misconduct pertaining to

the aforesaid charge that there was a deliberate delay in intimating the

rejection of the consignment to the exporter/ consigner, considering the

fact that the charge of corruption against the appellant has not been

proved, it would be difficult to say that the delay in dispatch of the

rejection certificate was deliberate. Had the charge no.3 been proved, it

could be said that the delay in dispatch was deliberate on account of the

exporter/ consigner not paying the bribe to the appellant, but in the

absence of such an allegation being proved, the delay in dispatch cannot

be said to be a deliberate act. It is stated in the charge-sheet that the

aforesaid delay in dispatch of the inspection certificate amounts to failure

to maintain devotion to duty and acting in a manner unbecoming of an

employee of the Agency thereby violated Rule 3(1)(ii) and Rule 3(1)(iii)

of CCS Conduct Rules, 1964. We are in agreement that the delay in

dispatch of inspection certificate would amount to failure to maintain

devotion to duty and thereby violating Rule 3(1)(ii) of CCS (Conduct)

Rules, 1964, we cannot accept that such an act would be an act

unbecoming an employee of the Agency and thereby amounts to

misconduct. The said charge could be said to be a misconduct only if it

was shown that the delay in dispatch of the inspection certificate was

deliberate, on account of exporter/ consigner not paying the bribe to the

appellant.

7. The Appellate Authority while deciding the appeal, did not

appreciate the fact that in the absence of charge no.III, having been

proved, no misconduct on the part of the appellant was established and,

therefore, penalty of removal form service, which was the penalty

awarded by the Disciplinary Authority holding all the three charges to be

proved, could not be sustained on the basis of charge nos. 1 and 2.

8. We are conscious of the fact that ordinarily this Court should not

interfere with the penalty imposed by the employer since primarily it is

for the employer to decide as to what would be the appropriate penalty in

respect of the charges proved against an employee but, it is also a settled

proposition of law that when the penalty awarded to an employee in the

disciplinary proceedings is so disproportionate to the charges held proved

against him that it shocks the conscious of the Court, it would only be

appropriate for the Court to intervene in the matter so as to prevent gross

miscarriage of justice.

9. In In B.C.Chaturvedi v. Union of India: 1995(6) SCC 749,

Supreme Court, after considering a Constitution Bench decision in State

of Orissa And Others v. Bidyabhushan Mohapatra: (1963)ILLJ 239 SC

and some other decisions, inter alia held as under:

"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."

In Dev Singh Vs. Punjab Tourism Development Corporation Ltd.

and Anr.[(2003) 8 SCC 9], the Apex Court while observing that a Court

sitting in appeal against a punishment imposed in the disciplinary

proceedings will not normally substitute its own conclusion on penalty,

however, hold that if the punishment imposed by the disciplinary

authority or the appellate authority shocks the conscience of the court,

then the court would appropriately mould the relief either by directing the

disciplinary/ appropriate authority to reconsider the penalty imposed or to

shorten the litigation its may make an exception in rare cases and impose

appropriate punishment with cogent reasons in support thereof. In the

case before it, the court, noticing that the charge established against the

appellant was not motivated by any ulterior consideration and at the most

could be an act of negligence, substituted the penalty imposed upon him

by punishment of withholding one increment stoppage at the efficiency

bar and also directed that he would not be entitled to any back-wages for

the period of suspension.

10. The learned counsel for the respondent has referred to the decision

of the Supreme Court in Sunil Kumar Banerjee Vs. State of West

Bengal and Others [[(1980) 3 SCC 304]. We, however, find nothing in

this judgment which can be of any help to the respondent. The learned

counsel for the respondent has next referred to Daman Singh and others

Vs. State of Punjab and others [(1985) 2 SCC 670], where the Supreme

Court dealing with the contention that several questions raised in the writ

petition before the High Court had not been considered observed that it is

not unusual for parties and counsel to raise innumerable grounds in the

petitions and memoranda of appeal etc., but, later, confine themselves, in

the course of argument to a few only of those grounds, obviously because

the rest of the grounds are considered even by them to be untenable. It

was further observed that no party or counsel is thereafter entitled to

make a grievance that the grounds not argued were not considered. If

indeed any ground which was argued was not considered it should be

open to the party aggrieved to draw the attention of the court making the

order to it by filing a proper application for review or clarification. The

time of the superior courts is not to be wasted in enquiring into the

question whether a certain ground to which no reference is found in the

judgment of the subordinate court was argued before that court or not.

This judgment, in our opinion, does not come in the way of the Appellate

Court permitting the appellant to argue on the disproportionately of the

punishment assuming that such a plea was not raised before the learned

Single Judge. The learned counsel for the respondent has last referred to

Commandant 22nd Ballalion, Central Reserve Police Force, Srinagar,

C/o 56/APO, and others Vs. Surinder Kumar [(2011) 10 SCC 244], the

Court referred to its earlier decision i.e. Union of India Vs. R.K. Sharma

[2(2001) 9 SCC 592], taking a view that the punishment should not be

merely disproportionate but should be strikingly disproportionate to

warrant interference by the High Court under Article 226 of the

Constitution and it was only in an extreme case, where on the face of it

there is perversity or irregularity that there can be judicial review under

Articles 226 or 227 or under Article 32 of the Constitution. There is no

quarrel that the proposition of law enunciated in the above referred case,

but, the Court would be failing in its obligation to protect the rights of the

citizens if it refuses to interfere with the penalty awarded to an employee

even where it finds the penalty to be so disproportionate to the charges

proved against him as would shock the conscience of the Court.

11. The next question which comes up for consideration is as to

whether we should remit the matter back to the Appellate Authority for

re-consideration of the penalty to be awarded to the appellant in the light

of the view taken by us or we should take it upon ourselves to decide the

penalty which would be appropriate to be imposed upon the appellant.

During the course of arguments, the learned counsel for the respondent

informed that since the appellant had already availed the remedy of

review available to him under the Rules and the Reviewing Authority is

Export Inspection Council which meets only once or twice of the year,

any re-consideration of the penalty can be carried out only by the

Reviewing Authority and not by the Appellate Authority. We take note of

the fact that the penalty imposed upon the appellant came to be imposed

way back on 20.6.1986 i.e. more than 26 years ago. The appellant has

superannuated long ago. During the course of arguments, his counsel

informed us that the appellant is suffering from cancer and does not know

how long he is going to survive. If we remit the matter back to the

Review Authority, for reconsideration of the penalty in the light of the

view taken by us, that may take quite some time considering the fact that

the Council meets only once or twice a year. In these exceptional and rare

circumstances, we are of the view that it would not be appropriate to

remit the matter back to the Reviewing Authority for reconsideration of

the penalty to be imposed upon the appellant. In our view, the ends of

justice would be met by substituting the penalty of removal from service

by penalty of stoppage of three increments without cumulative effect. We

ordered accordingly. We also direct that despite modification of the

penalty, the appellant will not be entitled to any back-wages, though he

would be entitled to counting of whole of the service till the date of his

superannuation for the purpose of working out his pension. He will not be

entitled to any additional payments towards leave encashment or gratuity

etc on account of modification of the penalty imposed upon him.

12. With above modification, the appeal stands disposed of. There

shall be no orders as to costs.

V.K.JAIN, J

CHIEF JUSTICE

MARCH 04, 2013 rd